Alberto Gonzales versus Alexander Hamilton

Friday

Jun 22, 2007 at 12:01 AM

Nat Hentoff

On June 11, when Senate Republicans blocked a Democratic resolution expressing no confidence in Attorney General Alberto Gonzales (Democrats were seven votes shy of moving the resolution to full debate), they were joined by Independent democratic Sen. Joseph Lieberman of Connecticut. I admire Lieberman's independence of party labels and dictates, but I am appalled at his indifference to the attorney general's persistent role in radically diminishing respect around the world for what used to be this nation's rule of law.

At the time of the Senate vote on the resolution, 25 CIA agents were being tried, in absentia, in an Italian court as "fugitives" for kidnapping an Italian citizen to be tortured in Egypt during a "rendition." This CIA crime, violating U.S. and international laws, is among many by the CIA that Gonzales, as our chief law enforcement officer, has never opposed. I could add many examples of his faithful adherence to this administration's revisions of the Constitution and violations of our international treaties.

As Dianne Feinstein, D-Calif., a co-sponsor of the no-confidence resolution, said during the debate: "(Gonzales) has turned the Justice Department into an extension of the White House rather than a scrupulous, independent enforcer of the law."

On the same day, in a 2-to-1 decision by a 4th Circuit Court of Appeals panel in the "enemy combatant" case of a legal resident in this country, Ali al-Marri, Judge Diana Motz ruled — as the 2004 Supreme Court had previously decided in the case of an American "enemy combatant" — that, as Sandra Day O'Connor said, "a state of war is not a blank check for the president." (That 2004 decision was greatly diminished by the Republican-controlled Military Commissions Act of 2006.) Motz, nonetheless, declared emphatically: "To sanction presidential authority to order the military to seize and indefinitely detain civilians — even if the president calls them 'enemy combatants' — would have disastrous consequences for the Constitution — and the country." Gonzales's Justice Department will appeal that ruling.

Before he became attorney general, Gonzales, as White House counsel to the president, stoutly supported this dangerously sweeping doctrine of the president's "inherent," unilateral constitutional powers. Bush also used it to evade the Geneva conventions and our own War Crimes Act by allowing "coercive" interrogations of non-American "detainees" that often turned into torture.

Moreover, Gonzales had no qualms in upholding the denial of meaningful habeas corpus rights to our imprisoned terrorism suspects — in defiance of a Supreme Court 2006 decision that the later Military Commissions Act of 2006 set aside cavalierly.

Republican Sen. Arlen Specter (Pennsylvania) has called this refusal of habeas corpus rights, also concerning conditions of confinement, "atrocious." Specter, unlike Lieberman, has "absolutely no confidence" in Gonzales.

I recommend to the Senate as a whole, and especially the president, the following highly pertinent statements by Alexander Hamilton and the Supreme Court Justice Joseph Story.

Hamilton, in the Federalist Papers (76), declared the Framers' clear intent was to avoid having officials with "the pliancy that would render them obsequious instruments of (the president's) pleasure."

Story, whose 1833 "Commentaries on the Constitution" remains influential to this day, was nominated to the Supreme Court by President James Madison, who knew more than a little about the Constitution, certainly more than Gonzales does. Story wrote that public offices are "not for cringing favorites or court sycophants (but) to give dignity, strength, purity and energy to the administration of the laws." Do you recognize the present attorney general in that job description?

For these enduring reminders of our presently weakened basic American values, I am indebted to George W. Liebmann of Baltimore, who quoted Hamilton and Story in a June 8, 2007, letter in The Washington Times. (In the newspapers I read regularly, I pay attention to the letters to the editor because so-called "ordinary" Americans often know more clearly why we are Americans than some professional commentators.)

And, listening on the night of June 12 to Tom Ashbrook's always-challenging Boston radio hour (www.wbur.org), I heard, during a discussion on the CIA trials in Italy, a caller from Germany who also knows why we're Americans: "I was an exchange student in America years ago, where I learned most of what I know about the rule of the law and democracy in the United States. I am dismayed at what has happed to the American rule of law giving up what we're fighting for."

That wasn't just a symbolic no-confidence resolution on Gonzales, which failed. It was a message to all of us Americans — and to the world — on how he has failed America's rule of law.

Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights and author of many books, including "The War on the Bill of Rights and the Gathering Resistance" (Seven Stories Press, 2004).

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